Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Massachusetts Gun Club And Police Chief Among Those Indicted For Young Child’s Homicide

Maybe we are taking the wrong approach when a juvenile brings a gun to school. After all, especially after the rash of teen-aged rampages at schools, where people were murdered, we have taken the child/gun combination very seriously. Maybe this has been a mistake.

Perhaps we should embrace it! Maybe make Uzi Firing 101 a required high school course. Actually, perhaps that is starting too little and too late. The answer may be to have each homeroom class in grade school assigned an actual tank and the kids can take turns practicing on it. I realize it may pose a bit of a problem with home-schooled kids. Tanks are big. Not all homes can accommodate one. But all kids deserve a full education. Perhaps the home-schooled kids, and kids too young for school, can be allowed to “skate by” with bazookas!

“Ok”, you yell as you back-hand your computer monitor. “Sam’s finally gone over the deep end!”

Really?

Well, perhaps you can explain to me the “brain trust” targeted by a new indictment that just got handed down in Hampden Superior Court. I warn you in advance, though, it is not a funny story.

The incident happened on October 26, 2008 at Massachusetts’ Westfield Sportsman’s Club (hereinafter, “Club Defendant”). There, men go to “be men” and boys go to be…the same as men, I guess. After all, if a man can handle a cute little uzi sub-machine gun, can’t a young child? And, after all, what does age matter? If a teenager can do it….then an 8 year old can, right?

Now, I could ask “why would you want them to?”, but instead of asking a question, I will simply answer. The answer is, “Well, not really.”

But, then, I guess hind-sight is 20/20 and, after all, I have the benefit of knowing what happened. How could anyone prior have even considered the possibility that giving an 8 year old little boy an Uzi to fire was a bad idea?

Well, they are considering it now; the boy is dead.

For some reason, though, the authorities are looking for some people to blame. Something about criminal negligence.

And homicide.

The criminal justice finger of blame is including some people you would not expect to see in this one. For example, the accused include Pelham Police Chief Edward B. Fleury (hereinafter, “Police Chief Defendant”). He will face arraignment on an involuntary manslaughter charge on December 22nd.

Also facing the same charge are Club Defendant, Carl G. of Hartford, Connecticut, and Domenico S. of New Milford Connecticut (the latter two hereinafter, collectively, “Regular Guy Defendants”). They will be arraigned on December 15th. Police Chief Defendant and Club Defendant are also charged with four counts each of furnishing a machine gun to minors for use during a gun show.

The Regular Guy Defendants are with the homicide because they supplied the guns for the event.

The 8 year old boy, Christopher B. (hereinafter, the “Deceased”) had been attending the event at Club Defendant which was sponsored by COP Firearms & Training, owned by Police Chief Defendant. When it was his turn to play with the uzi, he accidently shot himself in the head.

The father of another boy who was at Club Defendant at the same event and fired the very same machine gun says he is afraid of an over-reaction to a terrible accident. They even have a video of what otherwise was a pretty nice day. In fact, the video, proudly still displayed in the internet, displays Bill Spielman’s 11 year old son, Michael, firing the micro-uzi at the event. Not long after Michael finished, the Deceased picked up the same weapon. But something went horribly wrong and he shot himself. He was rushed to a Springfield hospital where he died.

Mr. Spielman and his son had been to the event before. This year’s event was the same as it was last year, when no kids got killed. Mr. Spielman maintains that this year it was just as organized. He said “Everywhere you turned there was range officers, on top of range officers… It was very well organized.” He went on to explain that the micro-Uzi is “only a 9mm shell, so it’s not that much of kick, it’s a pretty light shell it’s the same that a police officer would have in his pistol. But the repetitiveness of it does tend to bring you up a little bit.” He added that the weapon had a stock on it at the time, and said it was probably the weapon with the least amount of kick on it as far as automatic weapons go.

Apparently, if you cannot trust that such a light and little automatic weapon is safe for an 8 year old….what is there left to have faith in?

Mr. Spielman said he brought his son to teach him to respect the gun. “We take our kids out. We show them what these guns are. What they can do. This is not a video game. This is… When the bullet leaves that barrel you can’t take it back. There are no do-over’s. You can’t reset it. It’s permanent.”

In other words, perhaps a kid could get killed?

11-year-old Michael described shooting the gun. “The kick isn’t a whole lot for me but for him it was probably a lot more because he’s 3 years younger than me so it’s probably a lot different.”

Mr. Spielman was asked if there should be an age limit at these “respect the gun” outings.

“Yeah, maybe it should be 10 years old”, was the answer.

When Michael was asked if he would want to go back to the event, he said, “I’d love to go back but I’d want to take more precaution because my Mom was worried that when I came home I told her that and she was like, ‘well, that could have been you.’ and I realize if that was me then I wouldn’t be here.”

Meanwhile, lawyers representing Club Defendant said Friday that the club is innocent of any wrongdoing in the case. Northampton lawyer Charles F. Ksieniewicz, one of two lawyers representing Police Chief Defendant also said his client is not responsible for the death.

Bridgette M. Baldwin, an assistant law professor at the Western New England College School of Law, said much of the focus of the case has been on the title of one of the defendants, Police Chief Defendant. She said if people could separate Police Chief Defendant the private citizen from his identity as the police chief, the merits of the indictment would be a little less clear.

Perhaps the same argument could be made for Club Defendant.

“You can’t divorce him from his position as police chief. He was charged with knowing what is the law, and the law in Massachusetts doesn’t allow children to handle firearms,” she said. “And there is no exception when you get the parent’s permission.”

Baldwin also believes Club Defendant will be unable to say that it was relying on Police Chief Defendant’s expertise and knowledge of the law because “ignorance of the law is no excuse,” she said.

At the time he announced the indictments in the case last week, Hampden District Attorney William M. Bennett said no indictments were sought against the dead child’s father, who selected the gun that killed his son.

“The father will be punished every day of the rest of his life,” Bennett said .

Samuel’s take:

Most of you know that I have been in the Criminal Justice trenches for over 23 years. I have been a senior prosecutor and have a defense attorney in Massachusetts and New York. I have been around awhile.

Yet, obviously, a story can still come across my computer that makes me throw my hands up in the air and sputter at my monitor.

This is one of those stories.

It does, however, seem to fit somewhat with one of our most recent subjects.
Although clearly different in the respective defendants’ intent, this case is somewhat similar to the car chase cases we have been talking about. As a learned reader of this daily blog, you know that if a suspect engages the police in a high speed chase after a robbery or simply trying to outrun a warrant, and someone is killed, the suspect is held responsible.

This is not based upon a specific intent that the suspect had to injure someone, but reflects that the occurrence was a foreseeable result of the highly dangerous activity the suspect engaged in.

Similarly, we have heard of many cases where a child has died either in a drowning or similar such accident. Criminal negligence has been the theory brought in such cases if the Commonwealth believes the situation warrants. In this case, however, it is difficult to expect the Commonwealth’s theory to be simple criminal negligence.

Negligence is failing to recognize and take necessary precautions when there is a duty to do so. Recklessness, however, as in the case of the high speed chases mentioned above, involves a recognition of the risks (as mentioned above, “foreseeability”), but proceeding in the dangerous behavior in spite of those risks.

In law school, the typical example was shooting a gun into the window of a house without knowing for sure if anyone was in the particular room. Of course, I went to law school something like centuries ago, and it was before people were regularly doing that to achieve specific ends as they seem to today.

Under the law, there is also a presumption that when one is in the activity of breaking the law when this happens, there is “negligence per se”. In general parlance, this means it is negligence in and of itself. In cases such as this, it also paves the way for the theory of “recklessness”.

For example, it is illegal to try to outrun the police.

For example, it is illegal for 8 year old boys to be shooting cute little Uzi sub-machine guns.

You may not have known that. Perhaps, if you were at such a fun little event and you saw the police chief there (actually putting on the event), you thought it was legal. However, your lack of knowledge will not help you.

As Professor Baldwin indicated above, ignorance of the law is not a legal defense. Of course, one might expect that Police Chief Defendant and Club Defendant, at least, would have been aware of such laws. And, at least in the case of Police Chief Defendant, there was that oath he had taken about upholding the laws of the Commonwealth and all…but I digress.

No, this is not a Constitutional issue, by the way. I am well aware of the Constitutional Freedom to keep and bear arms. It is generally accepted that this applies to adults, not children around the age of 8 years, however.

One question is worth asking, though. Namely, if allowing these kids to shoot these guns was illegal, independent of the death…why is it that there are not additional prosecutions regarding the kids who were not killed but who used the guns…especially since we know there are videos of the event?

We’ll have to leave that one unanswered for now.

Samuel Goldberg is the senior criminal defense attorney at the firm of Altman & Altman, LLP. A former prosecutor in New York, he has worked as a Boston defense attorney over 18 years. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.

The full articles of this story can be found at http://www.necn.com/Boston/New-England/Gun-club-death-Accident-or-negligence/1226025502.html, http://www.necn.com/category/32/22345# and http://www.masslive.com/news/index.ssf/2008/12/pelham_police_chief_others_due.html,

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